Noorjahan Beevi vs Mohaideen Kunju
2021 Latest Caselaw 21639 Mad

                                                                         C.R.P(MD)No. 2136 of 2014


                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED: 28.10.2021

                                                        CORAM

                              THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA

                                           C.R.P(PD)(MD) No. 2136 of 2014
                                                       and
                                               M..P(MD) No.1 of 2014

                     Noorjahan Beevi                                          ....Petitioner

                                                           Vs.


                     1. Mohaideen Kunju
                     2. Fathummal Beevi
                     3. Syed Mohamed
                     4. Muzhamil                                               ...Respondents

                     PRAYER : Civil Revision Petition filed under Article 227 of the
                     Constitution of India to call for the records relating to the fair and
                     decreetal order dated 25.08.2014 made in I.A.No.334 of 2014 in O.S.No.
                     373 of 2009 on the file of the Principal District Munsif, Kuzhithurai and
                     set aside the same.


                                   For Petitioner  : Mr.Antony ArulRaj
                                                     for Mr.D.Rajkumar
                                   For Respondents : Mrs. Jessi Jeeva Priya




                     1
https://www.mhc.tn.gov.in/judis/
                                                                             C.R.P(MD)No. 2136 of 2014


                                                       ORDER

The revision petition has been filed seeking to set aside the order

permitting the amendment of plaint.

2. The learned counsel for the petitioner would submit that the

petitioner is the third defendant in O.S.No.373 of 2009 filed by the

plaintiff seeking for decree to demarcate the western three cents in the

scheduled property from the eastern portion and to put up boundary to

the demarcating land through Court with the materials to be supplied by

the plaintiff. Even prior to the filing of the suit, the plaintiff has sent a

pre-suit notice on 20.04.2007 calling up on the petitioner/3rd defendant

to restore the boundaries separating the plaintiffs western three cents

from the eastern portion four cents as described in the sale deed dated

18.12.1995 within seven days from the date of receipt of notice. In the

notice, the plaintiff had claimed that the first and second defendants are

bound by the sale deed dated 18.12.1995 and that their right is confined

to the portion there under and they were required to restore the boundary

separating the plaintiff western three cents from the eastern portion as

described in the sale deed dated 18.12.1995. Thereafter the plaintiffs

https://www.mhc.tn.gov.in/judis/ C.R.P(MD)No. 2136 of 2014

have filed the suit on 24.07.2009. In the suit the relief sought for by the

respondent/ plaintiff is for a decree to demarcate western three cents in

the scheduled property from the eastern four cents and to put up the

boundary to the demarcating land to the Court with the materials

supplied by the plaintiff.

3.The learned counsel would further submit that, in the plaint

description of the property was in respect of the entire seven cents.

Meanwhile property has been changed several hands. The

petitioner/third defendant being a purchaser from the second defendant

had filed a detailed written statement disputing the claim made by the

plaintiff with regard to the boundaries and the petitioner has also taken

the specific plea in the written statement that the plaintiff has no title or

possession in the suit property and the plaintiff is not entitled to claim

any demarcation of his alleged area of three cents in the suit property

since out of three cents was sold. The claimed property was already sold

by first defendant to third parties and the property was in possession of

third parties.

https://www.mhc.tn.gov.in/judis/ C.R.P(MD)No. 2136 of 2014

4.The learned counsel would further submit that it is pertinent to

submit that the parties in whose possession the property is now are not

added as party in the suit. Thereafter the Court framed issues and had

taken up the case for trial. The respondent/plaintiff has also filed proof

affidavit. Even in the proof affidavit the plaintiff have made same

narration about the same schedule and boundaries. While the matter was

posted for cross examination the first defendant had filed a petition

seeking for appointment of Advocate Commissioner stating that the

property sought to be demarcated was in the possession of one Sheik

Mohamed who is not the party to the suit and the said Sheik Mohamed

had also put a building in the specified plot and that there was well

defined compound wall in all sides of the building. The Commissioner

has also filed a report. At that stage when the case was posted for cross

examination the respondent/plaintiff had come up with a petition seeking

amendment of plaint. In the petition nowhere it has been pleaded that

despite due diligence the plaintiff could not have raised the matter

before the commencement of trial. Further it is the specific case of the

plaintiff right from the issuance of notice that the demarcation was

sought on the western side of her alleged property and not on the

https://www.mhc.tn.gov.in/judis/ C.R.P(MD)No. 2136 of 2014

southern side. It would tantamount to changing the very nature of the

relief in the suit itself. The petitioners have also filed a detailed counter

objecting to the amendment of the plaint. However the Trial Court

without taking into consideration the specific proviso in Rule 17 of

Order 6 and without rendering the finding with regard to the due

diligence had allowed the petition to the detriment of the petitioners,

against which the revision has been filed. In support of his contention the

learned counsel for the petitioner on the judgments of the Apex Court in

Pandit Malhari Mahale .vs. Monika Pandit Mahale and others

reported in (2020) 11 Supreme Court Cases 549 and in M. Revenna .vs.

Anjanamma(Dead) by legal representatives and others reported in

( 2019) 4 Supreme Court Cases 332.

5. Per contra the learned counsel for the respondent/plaintiff would

submit that out of seven cents the respondent/plaintiff have sold portion

of their land measuring 4 cents to the first defendant by deed dated

18.12.1985. In the deed the description of the property has been clearly

shown and remaining portion is left on the southern part only. Mistake

has crept in the notice and the plaint due to the inadvertence of the

https://www.mhc.tn.gov.in/judis/ C.R.P(MD)No. 2136 of 2014

Counsel who was conducting the case and the respondent/plaintiff cannot

be blamed for the mistake committed by the Counsel. She would also

submit that in the suit the plaintiff had stated that the respondent are

bound by the schedule as described in the sale deed dated 18.12.1995

and thereby, it is necessary the plaint had to be amended. The trial Court

rightly finding that such amendment would not alter the nature of the suit

and in order to avoid multiplicity of proceedings had rightly allowed the

petition.

6. In reply the learned counsel appearing for the petitioner would

submit that the property as claimed by the respondent/plaintiff had been

sold to various other parties even prior to the filing of the suit by the

purchaser and that they are necessary parties. The respondent /plaintiff

had not impleaded them as party to the suit and further there is no

averment with regard to due diligence in not filing the amendment

petition before the commencement of trial.

7.Heard the learned counsel appearing on either side and perused

the materials available on record.

https://www.mhc.tn.gov.in/judis/ C.R.P(MD)No. 2136 of 2014

8. In this case suit has been filed on 24.07.2009. Even prior to that

the plaintiff had issued pre suit notice on 20.04.2007 describing the

schedule of properties, subsequently the petitioner/defendant had filed

written statement on 23.02.2010 and chief examination of the plaintiff

had been done on 12.11.2010. Even in the proof affidavit filed no

correction had been carried out with regard to the description of the

property. When the case was posted for cross examination the petition for

amendment has been filed.

9. Perusal of the petition shows that the respondent/plaintiff has

not shown or averredanything with regard to the showing any due

diligence for not having filed application for amendment of plaint prior

to the commencement of trial.

10.In Pandit Malhari Mahale .vs. Monika Pandit Mahale and

other reported in (2020) 11 Supreme Court Cases 549 as referred

above it has been held as follows:

" 7. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the

https://www.mhc.tn.gov.in/judis/ C.R.P(MD)No. 2136 of 2014

matter before the commencement of trial. In Vidyabai & Ors. v. Padmalatha & Anr. [(2009) 2 SCC 409 ], this Court observed in para 19 as under:

“19. It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court’s jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.”

8. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order of the High Court as well as of the Civil Judge, the amendment application stands dismissed.

11. In M. Revenna .vs. Anjanamma(Dead) by legal

representatives and others, referred above, the Hon'ble Apex Court has

held that amendment of pleadings after commencement of trial is not

permissible except under conditions stated in proviso to Rule 17 of

Order 6 of CPC. The burden is on the person seeking amendment after

commencement of trial to show due diligence on his part as

contemplated under the proviso. As stated above, neither can amendment

be claimed as matter of right nor has the Court got absolute discretion to

allow amendment in view of the proviso.

12.As stated above, the perusal of the materials on record show

that the petitioner has not pleaded any due diligence for not filing

https://www.mhc.tn.gov.in/judis/ C.R.P(MD)No. 2136 of 2014

amendment within time and the trial Court has not returned any finding

with regard to the same.

13. In view of the above the order passed by the trial Court suffers

from infirmity and error and the order passed by the trial Court is liable

to be set aside.

14. In the result, the Civil Revision stands allowed and the order

25.08.2014 made in I.A. No.334 of 2014 in O.S. No.373 of 2009 stands

set aside. No costs. Consequently connected miscellaneous petition is

closed.

28.10.2021

Index : Yes/No Internet: Yes/No aav

Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

https://www.mhc.tn.gov.in/judis/ C.R.P(MD)No. 2136 of 2014

A.D.JAGADISH CHANDIRA, J.,

aav

To The Principal District Munsif, Kuzhithurai.

C.R.P(PD)(MD) No. 2136 of 2014 and M..P(MD) No.1 of 2014

28.10.2021

https://www.mhc.tn.gov.in/judis/